United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr J Sykes Representative Employment Cases Direct 8 Bloomsbury Square London WC1A 2LP


 


MR RECORDER BURKE QC

1. This is the preliminary hearing of the appeal of Mrs Ahuja against the dismissal of her claims for racial discrimination and unfair dismissal. Her claims brought against her employers, who are a firm of accountants in North West London, were heard by the Employment Tribunal at London Central, chaired by Mr Carstairs. The Tribunal's Decision was promulgated with Extended Reasons on 6 September 2000.
2. The factual background can be briefly stated. The employee, who is of Asian origin, was employed by the employers from 1995 as an audio typist and secretary. She had long standing differences with a Ms Middleton, who is white, who was at one stage the Office Deputy Supervisor, and later was promoted to Supervisor. Mrs Ahuja complained to her employers about Ms Middleton's conduct towards her on a number of occasions, but she had not expressly complained that the treatment of her constituted discrimination or harassment, on racial grounds, until October 1999.
3. Her Originating Application and her witness statement demonstrate that it was her case that she had suffered adverse treatment at Ms Middleton's hands, from at least 1997; but it was conceded, at an earlier hearing, that the Tribunal would only be concerned with alleged acts of discrimination on or after 21 August 1999, three months before the presentation of the Originating Application.
4. In fact, Mrs Ahuja was on holiday from 19 August 1999 to 1 September. Before she went on holiday, she wrote a letter to the Respondents' partners, explaining that the situation between her and Ms Middleton was serious, and that she was dissatisfied with what the partners were doing to deal with it. The Tribunal found that, at that stage, the employers had no idea that race was or was alleged to be involved in the problem.
5. The partners replied in some detail on 22 September 1999 that, in effect, they could do no more, and that in any event, Mrs Ahuja had recently told them that she had no continuing cause for complaint; they said that their investigation had revealed no more than a clash of personalities.
6. Mrs Ahuja came back to work after her holiday on 1 September. She went off work, suffering from stress, on 8 September. Those days between 1 and 8 September were the only days at which she was at work which fell within the direct consideration of the Tribunal for the reasons which we have already set out. According to the findings of the Tribunal, between those date, two incidents occurred. They are referred to in paragraphs 15, 16 and 17 of the Tribunal's Decision.
7. The first, on 1 September, relates to a request to Mrs Ahuja by Ms Middleton that Mrs Ahuja should deal with a set of accounts which Ms Middleton had started but was unable or was unwilling to complete. Mrs Ahuja objected to this, no doubt because it was Ms Middleton's work. The second occasion was on 7 September when, as the Tribunal found, Mrs Ahuja was shouted at by Ms Middleton in a rude manner.
8. After she went off work through ill health, on 8 September, Mrs Ahuja never returned to work for the Respondents. She resigned on 18 November, and claimed that she had resigned as a result of the employer's fundamental breach of the implied terms of trust and confidence in the contract of employment and that she had been unfairly, constructively dismissed.
9. So far as race discrimination is concerned, the Tribunal directed itself to take account particularly of the well known case of King v Great Britain China Centre [1991] ICR 516 and was referred to the case of Zafar v Glasgow City Council [1998] IRLR 36, in which the House of Lords approved the approach set out by the Court of Appeal to discrimination cases in King.
10. The Tribunal concluded, in paragraph 31 of its Decision, that Ms Middleton was a bully, who bullied Mrs Ahuja and also a white employee, Mrs Reed, who was more senior, but did not bully another Asian employee, Ms Patel, and that therefore, Ms Middleton's conduct towards Mrs Ahuja was not based on a difference of race.
11. Mr Sykes, who has appeared on behalf of Mrs Ahuja today, submits that in that paragraph the Tribunal fell into two errors: firstly, and this is the first ground set out in the Notice of Appeal, the Tribunal did not go through the exercise which he submits it must do, in considering the allegations of race discrimination, of finding whether there is an actual comparator who is a comparator who is in the same or not dissimilar circumstances to those of the complainant, then comparing the treatment of the comparator with the treatment of the complainant to see whether there is differential treatment, before going on to consider what the employer's explanation is, and whether that is an explanation which they accept or reject, or whether as a result of that process, they infer that the differential treatment was or was not on racial grounds. It is the comparator part of that process, which Mr Sykes submits, the Tribunal neglected in this case.
12. Mr Sykes is, of course, correct in submitting that King and Zafar, and no doubt other cases, establish that that is the correct approach. No doubt this Tribunal were well aware of that approach from those cases. There is also authority in this Appeal Tribunal that it is not necessary, in every case, to go slavishly through each stage in the Tribunal's Decision. But, says Mr Sykes, and this is the second way he puts it, in this particular case, the failure to carry out the exercise of identifying an actual comparator, or if an actual comparator could not be found, a hypothetical comparator, is particularly important because Mrs Ahuja's case was based on the proposition that there was an actual comparator, a Mrs Sandy Stewart, who held the same position as Mrs Ahuja, but who was white.
13. Mr Sykes brought attention to the fact that Mrs Reed, who the Tribunal referred to as being somebody who was white, but was also bullied, was not put forward as a comparator, and also that there was no evidence that she was involved in anything, in the period with which the Tribunal was concerned, namely from 21 August 1999 onwards; and, says Mr Sykes, Mrs Reed did not fall within the required category of comparator, because the relevant circumstances in her case were not the same, not materially different from that of the complainant; alternatively the Tribunal has not made any finding as to whether those circumstances were or were not the same or not materially different. He points out that the Tribunal does not refer to Mrs Stewart's colour, or examine in any way the precise comparison which Mrs Ahuja was seeking that they should consider, which formed the basis for her complaint.
14. At first blush, it might have seemed from reading these papers that the Tribunal paid no regard to the asserted comparison between Mrs Stewart and Mrs Ahuja because nothing in which Mrs Stewart was involved occurred during the relevant period, and therefore she could not be a comparator in relation to any acts of discrimination which were alleged to have occurred during that period. But Mr Sykes has addressed our attention to paragraph 18 of Mrs Ahuja's witness statement in which she implicitly asserts that, when on 1 September, she was given by Ms Middleton the job of doing the accounts which Mrs Ahuja thought that Ms Middleton should do, Ms Middleton did not give those accounts to Mrs Stewart, but gave them to Mrs Ahuja, thus Mrs Stewart, and the fact that the accounts were not given to her were involved in that incident; and the comparison which Mrs Ahuja was inviting the Tribunal to make could, in theory, have been relevant.
15. In our judgment, not, we have to say, without some hesitation, having regard to the fact that the Tribunal do not refer at all in their Decision to a comparison between Mrs Stewart and Mrs Ahuja, nor do they explain why no such comparison is being made, there is an arguable point of appeal contained within both grounds 1 and 2 of the Notice of Appeal, summarised in paragraph 6.1 and 6.7 of that Notice.
16. We turn to constructive dismissal. We say that because it is not alleged that when the Tribunal moved on from considering discriminatory acts to considering whether the employers had properly investigated Mrs Ahuja's complaints, the Tribunal was being invited to look at the issues arising from the investigation of Mrs Ahuja's complaints in terms of discrimination, but as the basis of the complaint of unfair dismissal, it being Mrs Ahuja's case that by failing to investigate, properly and promptly, upon receiving complaints that she had been the victim of discrimination or harassment on racial grounds, the employers had fundamentally broken the contract of employment.
17. Thus, while we have been dealing in this judgment so far with her claims of discrimination, we must now move on to her constructive dismissal claim. The Tribunal found that the employers had not been aware until 11 October 1999 that Mrs Ahuja complained that the actions of Ms Middleton were based on race. Mr Sykes has taken us, among other correspondence, to a letter from the Harrow Council for Racial Equality of 23 September 1999, which certainly heralds a complaint of harassment and discrimination on racial grounds, and must have put the employers, at the very least, on notice that there might well be a claim, although the letter does not explicitly say, as the Tribunal found, and correctly found, that a complaint was being made, or was to be made to the Tribunal.
18. The Tribunal found at paragraph 32 that as soon as the issue of race was raised, the Respondents sought advice and considered how to respond to that complaint. They went ahead to appoint a more independent person, namely (we think) a retired partner who was a consultant to the firm, a Mr Jay, to investigate or enquire into the complaint and the Tribunal went on to set out how the enquiry proceeded. It then said:

"The Tribunal is satisfied that nothing in the actions by the Respondent during that period amounted to a failure by them to investigate the complaint"

And in paragraph 33, the Tribunal say:

"As already indicated, the Tribunal was satisfied that the Respondents were taking action which the Tribunal regarded as appropriate action to investigate the very detailed grievance submitted by Mrs Ahuja."

There were various letters which we have been shown but need not comment on in any detail which culminated in a letter from Mrs Ahuja to the employers on 18 November, resigning from her employment because, as she felt, she was not getting anywhere with the investigation; nothing was happening, she had been off sick for some months and she felt that there was a fundamental breach of contract and left. As it happened, on 12 November a letter had been written about the enquiries to her by the employers, as the Tribunal found; but equally as the Tribunal found, she had not received that letter.

19. Mr Sykes has taken us through the whole chronology and the correspondence in order to establish, on an arguable basis, of course, at this preliminary hearing, that firstly the conclusion that the Tribunal reached as to whether or not there was a fundamental breach of contract by the employers was perverse, secondly, that the employers ought to have started their investigation earlier, and not only on receipt of Mrs Ahuja's letter of complaint to them of 11 October, and thirdly, even if the employers were not obliged to start their investigation before 11 October, nonetheless the conclusion that the Tribunal reached about what they had done after 11 October was not only perverse in the sense that they should have acted more promptly but was also perverse in the sense that the employers should have done more by way of investigation than they did.
20. The difficulty for Mr Sykes in these submissions is the findings of fact, the most important parts of which we have earlier set out. We do not see that, in the light of those findings which come at the end of a careful consideration of the evidence, it can arguably be said that the Tribunal have erred. The Tribunal plainly considered whether or not the investigation was sufficiently prompt; they have plainly considered whether what the investigation consisted of was adequate; and they have found against Mrs Ahuja on both of those issues.
21. As to whether they should have started their considerations earlier, looking through the documents, and listening to the points of evidence which have been put before us, very ably by Mr Sykes, we have not seen anything that could be said to have required the Tribunal, or even invited the Tribunal, to come to a conclusion that the investigation should have started earlier than the letter from the Council for Racial Equality on 23 September, and the Tribunal has expressly, in paragraph 32, addressed its attention to that letter, and what it meant; and we see no arguable error on their part in the way in which they have dealt with it. Even if they should have found that the investigation ought to have commenced on 23 September, or on receipt of the letter of 23 September, rather than on 11 October, we cannot see that the Tribunal would arguably have come to any different result in any event. Accordingly, this area of attack on the Tribunal's Decision, which is put as the third ground in the Notice of Appeal, fails.
22. Finally, Mr Sykes, by way of a fourth ground of appeal, attacked the Tribunal's finding at paragraph 33 of its Decision as follows:

"If she had received that letter"

which we interpose was the letter of 12 November 1999, which she did not receive,

"then no doubt Mrs Ahuja would not have resigned on 18 November."

Mr Sykes submits that that is a perverse finding, and that there was nothing in the 12 November letter which would have changed her mind. We do not accept that that was a perverse finding, or that was arguably a perverse finding, but even if it was, and if the finding ought to have been the reverse finding, then as Mr Sykes sensibly acknowledged, it would not have made any difference to the ultimate outcome.

23. In the end, Mr Sykes accepted that his fourth ground was really no more than a point which supported his submissions to us on the third ground, and we have taken that point into consideration in coming to the conclusion that we have on the third ground.
24. What follows from all of that is that this appeal will go forward to a full hearing, in relation to the first two grounds set out in the Notice of Appeal, which we have identified, which go to the decision on racial discrimination; but the attack on the finding that there was no constructive dismissal fails and that part of the appeal is dismissed.